Reconciling five
competing conceptual structures of indigenous peoples’ claims in
international and comparative law

On
what conceptual foundations do legal claims made by indigenous peoples rest?
Uncertainty on this issue has had the benefit
of encouraging the flowering of multiple approaches, but it also has done
much to heighten national dissensus on questions involving indigenous
peoples, and it has been a serious obstacle to negotiation in the United
Nations[1]
and the Organization of American States (OAS)[2]
of proposed Declarations on the Rights of Indigenous Peoples. This article
seeks to clarify the debate by distinguishing and exploring five
fundamentally different conceptual structures employed in claims brought by
indigenous peoples or members of such groups[3]:

(1)human
rights and non-discrimination claims;

(2)minority
claims;

(3)
self-determination claims;

(4)historic
sovereignty claims; and

(5)claims as
indigenous peoples, including claims based on treaties or other agreements
between indigenous peoples and states.

Each of these conceptual
structures has its own style of argument, historical account and canon,
patterns of legitimation and delegitimation, institutional adherents,
discursive community, and boundary markers. Each depends on simple premises
to define its locus. These premises have been adopted and adapted in
political struggles. Protagonists in these struggles purport to render the
broad analytic distinctions among the categories as deeply cleaved
boundaries, although most recognize that these distinctions are reconsidered
and the boundaries repositioned over time. Debates as to the essence of each
conceptual structure, and especially as to the boundaries between them, are
often proxies for clashes of political interest. The construction of
conceptual structures and of lines between them is a form of political
expression, but one that utilizes, and thus is conditioned by, while itself
affecting, languages of law and philosophy. Political interests are veiled
scarcely in polar positions taken in arguments as to whether human rights
can be held by groups or only by individuals[4],
whether it is correct under the International Covenant on Civil and
Political Rights that minorities have no right of self-determination but all
peoples do[5],
and whether the operative concept is indigenous peoples or indigenous people[6].

For lawyer-diplomats, by
contrast, a frequent objective is to bridge these political divides, making
the boundaries indistinct and permeable, so that they are not necessarily
determinative at all. This latter project is shared by some
lawyer-activists, but they proceed from the premise that there are
conceptual differences among the categories and that the political impetus
behind a particular category can be marshaled astutely for some other
objective by extending that category’s domain. This is one purpose of
arguments that self-determination is actually a human right, that minority
rights to culture extend to indigenous land rights, that all indigenous
peoples by virtue of that designation have the right to self-determination.

In political
negotiations about normative matters, the question of which concept is
applicable often is set up as the key threshold issue; its resolution is
seen as a key to channeling arguments, determining which structure of
analysis and legitimation will then prevail, and thus influencing outcomes.
In initial negotiations on the U.N. and OAS Declarations, many state
representatives tended to urge that the issues be addressed as human rights
or perhaps minority rights questions, while indigenous representatives often
framed the core issues in terms of self-determination or historic
sovereignty[7].
Over time some convergence has occurred on the utility of a fifth category—the
notion that some legal claims raised by indigenous peoples are sui generis
and have a distinct conceptual structure. The forensic point of this article
is that different claims made by indigenous peoples may fall into any of
these five categories, or into several at once, and that the totality of
these claims as a genre cannot and should not be understood as belonging
exclusively to any one or other category. While genuine analytical
distinctions underpin this division into categories, these distinctions in
themselves do not resolve many of the more difficult problems that arise in
practice. Three sets of practical problems arise for consideration in this
article. First, how far and how successfully may the first four, well-established
categories—which have been structured in large measure by norms and patterns
of legal practice not related specifically to indigenous peoples—be adapted
to the distinctive features of indigenous peoples’ issues? Second, how well
do these different and apparently competing concepts fit together in an
integrated legal structure? Third, do the problems and limits of these
processes of adaptation and integration of the first four categories suggest,
against the background of the increasing salience of indigenous peoples’
issues and the rapid evolution of law and policy in this area, that a new
legal category of claims of “indigenous peoples” has been established, and
if so, what is its justification, structure, and significance? These
questions will be addressed in the discussion of each of the five categories.
The significance and implications of this five-fold division, including the
strategies it encourages and the contextual variation and legitimation this
fragmentation makes possible, will be considered in the conclusion.

This article is
concerned with conceptual issues rather than doctrinal analysis or political
assessment. Having been prepared with the specific concerns of legal
practice and of academic legal studies primarily in mind, the outlines of
the arguments about the identification, adaptation, and reconciliation of
distinct conceptual structures will be illustrated to a disproportionate
extent by specific cases in national and international tribunals. A
consequence of focusing on juridical decisions is that the lineaments of the
conceptual structures are those identifiable in international jurisprudence
and in a sample of those national legal systems where “indigenous peoples’
issues” are a subject of substantial litigation and express judicial
articulation. It is suggested that a comparable but more ambitious
analytical project could be undertaken with reference to political discourse
or to non-judicial policy-making, broadening the range of actors and regions
involved.

Whether issues raised by
indigenous peoples can be addressed exclusively within the existing
framework of international human rights law or whether, by contrast, a new
legal category of indigenous peoples’ rights requires recognition is a
fundamental political debate that exemplifies the political tendency to
polarize around questions of which legal category applies. Some state
representatives in U.N. and OAS negotiations have suggested that the
conscientious application of human rights standards is all that is necessary
to address problems suffered by members of indigenous groups satisfactorily[8]
In this view, the historic problems to be overcome are discrimination
against indigenous peoples and unequal treatment by the state, and the
solution is to establish effective national institutions for human rights
protection where they have been lacking and to ensure true equality of
treatment between members of indigenous groups and other citizens. State
representatives who take this line often are opposed to claims to collective
rights, suspecting that these are incompatible with true equality among the
citizenry. Some also oppose any recognition of indigenous groups as “peoples,”
fearing that this may place the indigenous group outside the national
“people” whose existence legitimizes the state and whose bounds define a
limit of the equal rights-bearing community. The problems with this polar
position will be considered further below. The opposite position taken by
some indigenous representatives, that the human rights program has been
irrelevant in practice and is a conceptual obstacle to the realization of
indigenous aspirations, is animated by bitter experience of atrocities and
monumental injustices in some supposedly rights-protecting countries. For
some radical leaders, this view represents an outright repudiation of
existing state arrangements. For others, it embodies critiques of rights
discourse as diversionary. These critiques have been made in legal-liberal
polities; for example, Derrick Bell’s critique of the civil rights struggle
as channeling energies of black Americans into areas of symbolic success but
with limited impact on underlying problems[9]
These cautions are important, and the mistrust grounded in historical
experience is great, but strong repudiation of the international human
rights program is not part of the mainstream agenda of the international
indigenous peoples’ movement. Many indigenous groups, antagonized by the
assimilationism of the “human rights only” position and aware that such
equal rights rhetoric historically has been accompanied by gross injustices,
point out that the human rights program has not worked adequately in
institutional practice and argue that it is normatively insufficient. This
suggests that the human rights program ought to be used, and that it might
be made more useful by reform, but leaves for later consideration the
question whether a reformed human rights program could ever satisfactorily
address all the issues, and in particular, whether a distinct category of
indigenous peoples’ rights ought to exist alongside the human rights program
and other international legal structures.

Claims by members of
indigenous peoples are often claims to respect for basic human rights, for
example a claim to be free from torture or slavery. Such claims usually are
made against the state, but may be directed substantively at conduct by
certain non-state groups, including armed bands, mining corporations, or
indigenous peoples’ organizations. At issue is whether the human rights
program can be adapted and renovated to take account of distinctive issues
raised by indigenous peoples. In countries where the human rights program is
not normatively important or where it is not operationalized, questions
about incorporating indigenous peoples into it are rather abstract and
futuristic, although indigenous peoples in some such countries already may
receive some measure of state support or protection. In evaluating the
adaptability of the human rights program, the focus must be on this program
as it is enunciated and operationalized in relevant national institutions
and in international institutional practice.

A fundamental question
in human rights claims raised by members of indigenous groups against the
state is how far the distinctive situation of the indigenous group is
relevant. Issues relating to the fair treatment of groups and the inevitable
questions about individual identity and membership, which any operational
reference to groups entails, are entangled with standard human rights claims
based on the suffering of individuals in several existing normative
structures. “Genocide” imports issues of harm to groups into the very
definition of the crime committed against any individual. The concept of “ethnocide,”
although not well-developed juridically, is understood by human rights
advocates to extend the ambit of genocide to the destruction of culture and
other conditions essential for the continued distinctive existence of a
group. In practice, the interaction between individual rights claims and
group membership is established most systematically by prohibitions of
wrongful discrimination. The strong international policy against racial
discrimination has been an important source of leverage in indigenous claims.
In the landmark decision of the High Court of Australia on aboriginal title
in Mabo, for example, Brennan, J. indicated that the unacceptability of
racial discrimination or other violations of fundamental internationally-recognized
human rights was a strong reason for that Court to be willing to reverse the
long-established principle of Australian property law that aboriginal people
hold no rights to land at common law except those derived from the Crown[10]
Conversely, the identity of a particular individual vis-a-vis a particular
indigenous group may be relevant in introducing the question of
discrimination to issues that otherwise would be unproblematic. In Means v.
District Court of the Navajo Nation, for example, Russell Means, a prominent
Oglala Sioux activist, was arrested by Navajo Nation police on the Navajo
Reservation for the alleged assault there of Navajo victims, but he argued
that the U.S. statutory provision that confers jurisdiction on the Navajo
tribal court over non-members who are Indian, but not over other non-members,
is contrary to the provisions for equality and non-discrimination in the U.S.
Constitution[11]

A survey of decisions by
state courts in countries formally and substantively committed to judicial
enforcement of some human rights shows divergent patterns and much
uncertainty in addressing the issue whether and how the distinctive
situation of indigenous groups affects human rights arguments. One line of
approach is to deny any distinctive character to indigenous claims on the
ground that human rights are universal, not special. An illustration is Lyng
v. Northwest Indian Cemetery Protective Association, where Indian plaintiffs
challenged a proposal by the U.S. Forest Service to build a road on public
land in the Chimney Rock area of Northern California on the ground that the
road effectively would destroy the tranquillity essential to the
continuation of Indian meditative religious practices on this land that had
been pursued for many generations[12]
Writing for a majority in the U.S. Supreme Court, Justice O’Connor rejected
the argument that the Indians’ right to religious freedom under the First
Amendment was infringed by road construction[13]
Although federally recognized Indian tribes occupy a special place in the
U.S. legal system, and U.S. law recognizes aspects of what is often called
“sovereignty” of Indian tribes, Justice O’Connor did not see this as
relevant to a First Amendment claim[14]
Her position was that Indians have exactly the same First Amendment rights
as anyone else, and that these do not extend to controlling the use of
public lands[15]
The historic experience of Indians, including the loss of control of lands
they had long used, was not material, nor was the ancient character and
spatial location of this particular religious practice[16]
Her argument was that the courts must be neutral as among religions and
cannot begin inquiries into the veracity, merits, or historical weight of
religious claims that would privilege some religious claims over others[17]
However, it might be argued to the contrary that the First Amendment
jurisprudence does exactly this in privileging understandings of religion
that depend not on expanses that since colonization have become “public”
lands, but instead on private buildings protected by a property rights
re-gime that itself is buttressed by First Amendment limits on state action.
The process by which land historically used by Indians for religious
observance became “public lands” and the weakness of the property rights
Indians enjoy are integral to evaluating the protection of their religious
freedom. Supposed neutrality in human rights protection can be, as here, a
distortion where the human rights question is separated from the property
rights regime and from governance regimes, such as federal trust
responsibilities or frameworks for self-government.

A second approach is to
start with a requirement of universality but to modify it to favor
indigenous peoples where disadvantage or past injustices warrant. In
Gerhardy v. Brown, a defendant who was not a member of the Pitjantjatjara
and thus had no right to enter lands restored to Pitjantjatjara communities
under the Pitjantjatjara Land Rights Act[18],
a South Australian statute, challenged his prosecution for illegal entry
onto the lands by arguing that the statutory provision limiting his access
infringed the Racial Discrimination Act[19],
a Commonwealth statute[20]
The Act was intended to give effect to provisions in the International
Convention on the Elimination of All Forms of Racial Discrimination[21]
A majority in the High Court of Australia took the view that the South
Australian legislation was on its face racially discriminatory in that only
Aboriginal people could be Pitjantjatjara and so entitled to free access to
the land, whereas non-Pitjantjatjara (including non-Pitjantjatjara
Aboriginal people like the defendant) were entitled to access only if other
conditions were satisfied (e.g., if they had permission or were candidates
for election to public office)[22]
A strong argument may be made that this approach to the concept of legally-prohibited
discrimination is misguided, and that the Court should have asked whether
the measures had an objective and reasonable justification, were
proportionate to this justification, were not unnecessarily under- or over-inclusive,
and reasonably accommodated the interests of others[23]
In the terms used in U.S. jurisprudence, the question is whether the
classification of Pitjantjatjara by reference to traditional ownership of
the land when only an Aboriginal person could satisfy the requirement of
being a traditional owner, and the exclusion of non-Pitjantjatjara from the
land, were measures justified by compelling state interest and were tailored
narrowly to meet the legitimate objectives of the statute[24]
In Gerhardy, the Court failed to make such an inquiry (although in
subsequent cases it has indicated that this approach might be modified in
the future)[25]
The Court held, however, that the statutory provision was saved by the
provision in the International Convention excluding from the category of
racial discrimination: “Special measures taken for the sole purpose of
securing adequate advancement of certain racial or ethnic groups or
individuals . . . in order to ensure such groups or individuals equal
enjoyment of human rights and fundamental freedoms . . . .”[26]
The policy of this Convention provision is widely understood to apply even
where there is no specific evidence of the effects on particular groups or
persons of past discrimination[27]
It thus diverges from, for example, current U.S. judicial approaches to
affirmative action, under which racially-based affirmative action, or
reverse discrimination, is subject to the same requirements as racial
discrimination against discrete and insular minorities—compelling state
interest and narrow tailoring to advance the interest[28]
Nevertheless, some members of the High Court in Gerhardy were strongly
influenced in their finding on prima facie discrimination by their concern
that allowing the government to evade prohibitions on racial discrimination
by reference to such criteria as traditional ownership might open a loophole
for what Gibbs, C.J. called “the most obnoxious discrimination.”[29]
By this he seems to have meant apartheid. His suspicions of “traditional
ownership” as a sufficient criterion for excluding non-owners overcame the
argument that most owners of property can exclude non-owners; he focused on
“the vast area of the lands . . . more than one-tenth of the state” to
distinguish the situation of the Pitjantjatjara from that of ordinary
property holders, although Australian property law protects the exclusionary
rights of non-aboriginal holders of very large tracts[30]
This logic—that claims settlements with indigenous peoples for the
restoration of land to traditional owners may involve racial discrimination
against non-members of these groups—is a basis for much political opposition
to, and some judicial concerns about, land claims settlements or other
historically-grounded arrangements. Some of the concerns are well-founded,
most obviously where the language of “indigenous rights” is used to justify
domination and abuse of “nonindigenous,” but also where a state action
purporting to favor a disadvantaged indigenous group is in fact a disguised
measure to serve another sectional interest, whether a mining company or an
exclusively self-serving elite. The concept of non-discrimination is thus
valuable in, but also a potential obstacle to, indigenous peoples’ claims.
It, too, often is described with an air of neutrality that belies its real
workings, especially its connections with property, self-government, history,
and social justice.

A third approach is to
uphold special measures by states that benefit indigenous groups precisely
because of the distinctive histories and experiences of these groups. In
Morton v. Mancari, the U.S. Supreme Court was unanimous in upholding an
explicit policy of the U.S. Bureau of Indian Affairs to give preference in
its hiring and promotion policies to members of federally-recognized Indian
tribes[31]
Rejecting a due process challenge by non-Indian employees, the court held
that “[t]he preference, as applied, is granted to Indians not as a discrete
racial group, but, rather, as members of quasi-sovereign tribal entities
whose lives and activities are governed by the BIA in a unique fashion.”[32]
The Court here steps outside the structure of standard human rights and non-discrimination
arguments, focusing on the distinctive history of Indian-U.S. relations and
on the trust obligations of the United States toward Indians[33],
elements that were to make almost no appearance in Lyng when the issue
involved the high political stakes of public land use rather than the arcane
world of the Bureau of Indian Affairs[34]
Even in Morton, the Court’s approach is not one of judicial rights activism;
the opinion is very deferential toward congressional policy and reaffirms
the plenary power of Congress in relation to Indians[35]
The judgment is thus suggestive of the ambivalence of state judicial
recognition of a distinct body of law triggered by identities as indigenous
peoples: The category may have significant effects, but state government
institutions endeavor to reserve to themselves the power of shaping it.

This analysis of Lyng,
Gerhardy, and Morton suggests that the cases differ significantly,
representing three approaches to the use of human rights and non-discrimination
arguments in indigenous peoples’ claims. Lyng embraces a universal human
rights approach in which indigenous claims receive no special consideration,
Gerhardy allows special consideration but under careful watch as presumptive
discrimination, and Morton permits the legislature to adopt special measures
without special scrutiny for reasons of history and the historically-grounded
trust relationship the United States is deemed to have assumed. Nevertheless,
they have much in common. In each case the questions are framed in terms of
state law: the meaning of the First Amendment, the Racial Discrimination Act,
and the Due Process Clause. There is no real indigenous voice in any of the
cases; the cases are about Indians and Aborigines, but they themselves do
not figure greatly in the judicial opinions. The courts do not demonstrate a
close grasp of indigenous experience in relation to religion, land, self-government,
or state institutions such as the Bureau of Indian Affairs. This judicial
pattern is changing, however, as negotiations and decisions on matters such
as land, fisheries, resource management, language, education, and
broadcasting evolve into general state acceptance of some degree of
indigenous participation, self-government, and voice. Landmark judicial
decisions in New Zealand, Canada, and to some extent Australia have pointed
the way toward, without necessarily themselves accomplishing, this turn. New
Zealand Maori Council v. Attorney-General established the principles of the
Treaty of Waitangi as in some way constitutional and envisaged the Maori and
the Crown proceeding as treaty partners[36];
this has since become a canon of New Zealand public policy. Delgamuukw v.
British Columbia establishes that indigenous understandings of relations to
land and territory, embodied often in oral history, are admissible and
relevant in the construction of a concept of aboriginal title that is not
simply a creation and sufferance of the state legal system, but embodies
both indigenous history and indigenous aspirations[37]
While the Supreme Court of Canada did not address forms of self-government,
the Court’s approach is suggestive of such a development, and its call for
governments and first nations to negotiate has been understood in that
context[38]
In neither New Zealand Maori Council nor Delgamuukw did the court rest
heavily on standard human rights concepts. Rather than stretch and adapt
these, the courts focus on elaborating a body of public law in which certain
types of indigenous claims are sui generis. Mabo v. Queensland is more
equivocal in this respect. Human rights considerations figure as a
justification for reversing earlier authority on aboriginal title, and much
of the discussion is about concepts of property in common law rather than
about the terms of a public political relationship of the sort that the New
Zealand Court of Appeal founded on the Treaty of Waitangi[39]
Nevertheless, the situation of indigenous peoples’ property in Australia
became a substantial sui generis issue, with the Commonwealth government
seeking at least some aboriginal input through the Australian and Torres
Strait Islander Commission before adoption of the Native Title Act, 1993[40]
The weakness of the public law element became manifest in the retreat from
parts of the High Court’s jurisprudence in the Native Title Amendment Act,
1998, government recalcitrance in dealing with and funding the Commission,
and the unilateral terms of government policy on matters ranging from
“national reconciliation” to the restructuring of aboriginal land councils[41]

This review indicates
that the adaptation of the category of “human rights” is of fundamental
importance in addressing indigenous issues, and that courts and state
institutions often prefer to address such issues within this frame, but
practice and experience suggest that additional concepts are needed and
often are deployed. Issues connected with distinct histories, cultures, and
identities animate the search for alternative concepts of international law
and national law related to, but going beyond, individual human rights and
non-discrimination. These concepts, increasingly influential in judicial
practice and political negotiations relating to indigenous peoples’ claims,
will be considered in subsequent sections.

“Minorities”—or more
often, a variant such as “national minorities”—has been utilized as a
juridical category in international treaty law for several centuries and was
promulgated actively and operationalized by post-World War I legal
instruments and League of Nations institutions[42]
After 1945, however, states looked to the lessons of Nazi Germany’s
irredentist use of disaffected German minorities in neighboring countries
and to the imminent problems of nation-building in post-colonial states and
became reluctant to establish international law standards focused
specifically on minorities, preferring instead to build a general human
rights program applicable to all individuals. Hence, there is a lack of
minority rights clauses, beyond prohibitions of discrimination, in the 1948
Universal Declaration of Human Rights[43],
the 1950 European Convention on Human Rights[44],
and comparable regional instruments in the Americas and Africa[45]
The body of international legal instruments focused specifically on
“minorities” is thus an impoverished one. In the early 1990s, recognition of
a need to face this deficiency resulted in the U.N. Declaration on
Minorities (1992)[46]
and the Council of Europe Framework Convention for the Protection of
National Minorities (1995)[47];
however, neither is very expansive, as many state governments have continued
to be unwilling to support general normative provisions that may encourage
group demands or inhibit national integration. Germany, for example, is
willing to grant significant legal entitlements to some long-established
groups within Germany, including the Danish and Sorb minorities, but much
less to other minority groups. France continues to assert that there are no
minorities in France to whom international law instruments on minorities
should apply, although its internal legal practice is more nuanced,
especially in favoring a degree of autonomy for Corsica. Algeria, Burundi,
Madagascar, Senegal, Turkey, and Venezuela are among other states that have
at times taken positions similar to that of France[48]
Article 27 of the International Covenant on Civil and Political Rights (ICCPR),
an instrument drafted in the early 1950s and adopted in 1966, thus remains
the principal general minority rights treaty text of global application, and
it is worded as an individual rights provision phrased with an aspiration to
avoid encouraging the appearance of new minorities and seeking to impose
only modest duties on states[49]

If many state
governments have been hesitant to see “minorities” operate as a flourishing
general legal category wishing to subsume it into human rights, many
indigenous leaders and advocates have insisted on distinguishing themselves
from “minorities,” arguing that classifying indigenous peoples as minorities
is belittling, missing what is distinctive about being indigenous and being
a people[50]
This political struggle about categories goes to important issues of
identity and philosophy. It is misleading, however, to transpose these
political misgivings about the applicability to indigenous peoples’ issues
of a broad category of “minorities” so as to exclude this category from the
framework of forensic law as it is currently practiced. Advocates, some
national courts, and above all the U.N. Human Rights Committee have seen in
Article 27 a basis and justification for addressing indigenous issues,
enabling these institutions to ensure that these issues are not bypassed and
to take an active part in responding to the rising demand on them for action[51]
In dealing with indigenous issues, the Human Rights Committee increasingly
has interpreted Article 27 in a creative and expansive manner so as to elude
some of the strictures states may have hoped to set upon it[52]
This has been reinforced by national courts and by various national
commissions and advisory bodies.

Perhaps the most
important juridical application of Article 27 for some indigenous peoples
has been a series of holdings that failure of the state to protect
indigenous land and resource bases, including the continuing effects of past
wrongs, in certain circumstances may amount to a violation of the right to
culture protected in Article 27. The leading case outlining the views of the
Human Rights Committee is Ominayak v. Canada, where the Committee concluded
that the historical inequity of the failure to assure to the Lubicon Lake
Band a reservation to which it had a strong claim and the effect on the Band
of certain recent developments including oil and timber concessions
“threaten the way of life and culture of the Lubicon Lake Band, and
constitute a violation of Article 27 so long as they continue.”[53]
The Committee has incorporated this understanding of Article 27 into
numerous discussions of state reports and has pressed states to adopt this
expansive understanding of their Article 27 obligations in national policy.
For example, the Committee weighed in on the controversy concerning dam
projects on the Biobio river in Chile, expressing concern that these “might
affect the way of life and the rights of persons belonging to the Mapuche
and other indigenous communities” and casting doubt on the Chilean
government policy of land acquisition and resettlement: “Relocation and
compensation may not be appropriate in order to comply with article 27 of
the Covenant.”[54]
This view that Article 27 obligations impose constraints on government
economic development policy was applied as the rule of decision by the
Supreme Administrative Court of Finland in nullifying deeds for mining
claims in Sami areas in a series of cases beginning in 1996[55]
In 1997, the District Court of Sapporo made similar use of Article 27 in
finding that the government improperly had failed to consider Ainu culture
before proceeding to build the Nibutani Dam[56]

Notwithstanding
opposition by some indigenous groups to any categorization as minorities,
Article 27 may be an important source of leverage for indigenous peoples in
securing recognition. The need to make periodic reports under the ICCPR
spurred debate within Japan about the government line that the country is
homogeneous, leading eventually in the late 1980s to the official
abandonment of the view of Japan as entirely homogeneous and agreement that
Ainu are a distinct ethnic group for purposes of Article 27. This in turn
paved the way in the Japanese political system for the government to move
glacially toward recognition of Ainu as indigenous. Although such
recognition was not included in the Ainu law of 1997[57]
official government statements have moved in this direction, nudged
significantly by the finding of the Sapporo District Court that Ainu are
indigenous, in a case that itself was leveraged by Japan’s acceptance of
Article 27[58]

Another source of
misgivings by some indigenous groups about Article 27 is that its complex
implications go well beyond possible claims by groups against states.
Lovelace v. Canada represents on its face the use of Article 27 by a group
member to challenge the group’s own policy of excluding her[59]
Under the Indian Act, Sandra Lovelace had lost her status as an Indian by
the act of marrying a non-Indian man, whereas Indian men who married
non-Indian women did not lose their status[60]
Her exclusion was upheld by the political representatives of her own
Maliseet band on the Tobique reservation[61]
The Committee’s handling of the case, however, can be appreciated also as a
response to a century of the Indian Act policy of assimilation. Not only did
the Indian Act transform into non-Indians women who married non-Indians and
their children, but also it ended the Indian status of men who served in the
Canadian army and of Indians who became “enfranchised.”[62]
Marrying a white, having a white father, military service, and civic
entitlement to vote were all badges of honor qualifying Indians to upgrade
to non-Indian[63]
This established pattern of assimilation combined with gender-targeting had
structured many Indian communities[64]
The Committee’s views reflect sensitivity to the problems for community
decisionmaking and capacity for disentrenching such a long-standing
identity-shaping system. The Committee did not treat the case as one of
discrimination in Indian communities between men and women[65]
nor did it find simply that Article 27 entailed the entitlement of all
ethnic Indians to move back to their band’s reservation if they wished to do
so. The Committee focused narrowly on Sandra Lovelace’s own circumstances as
a divorcee wishing again to live on her reservation after her divorce[66]
Partly because it chose not to confront the entire structure of the Indian
Act, a paternalistic dimension is discernible in the Committee’s language.
This element apart, the prudence of the Committee’s circumspection was borne
out by the upheaval and long process of adjustment precipitated by the
reform and partial rectification of the assimilationist provisions of the
Indian Act in 1985[67]

The regime of minority
rights involves intricate dynamics and balances among individual claims,
state action, community autonomy, and participation by members of a minority
group in its shared cultural and economic life. Is the status of a group as
historically prior or indigenous relevant to the way in which these balances
are struck? The U.S. Supreme Court decision in Santa Clara Pueblo v.
Martinez confronted the question of the significance of distinct Indian
history and political identity in refusing to overturn a decision of the
Santa Clara tribal authorities denying membership to the children of Julia
Martinez[68]
Ms. Martinez was a member of the Santa Clara Pueblo, a traditional
reservation community of fewer than 1500 people in which gender was an
important, explicit part of the definition of social roles[69]
Her children had grown up on the reservation and were Tewa-speaking, but
were excluded from membership, and thus from inheriting property or the
right of residence on the reservation after her death, because Santa Clara
membership rules excluded children of a female tribe-member born to a
marriage with a non-member, while including children of a male tribe-member
in such circumstances[70]
The argument of Justice Thurgood Marshall’s opinion for the Court begins by
quoting with approval from Chief Justice John Marshall in Worcester v.
Georgia[71]:
“Indian tribes are ‘distinct, independent political communities, retaining
their original natural rights’ in matters of local self-government.”[72]
The Court affirmed the power of Congress to make laws regulating Indian
tribes and conferring federal court jurisdiction, but favored judicial
circumspection where Congress has not given federal courts the clear power
to intervene[73]
Finding that no such power had been granted here, the Court was able to
avoid consideration of the membership issue[74]
The opinion is anchored by the Court’s recognition “that the tribes remain
quasi-sovereign nations which, by government structure, culture, and source
of sovereignty are in many ways foreign to the constitutional institutions
of the federal and State governments.”[75]
This is buttressed by policy arguments that federal judicial intervention
“may substantially interfere with a tribe’s ability to maintain itself as a
culturally and politically distinct entity,”[76]
and that membership issues “will frequently depend on questions of tribal
tradition and custom which tribal forums may be in a better position to
evaluate than federal courts.”[77]
Thus, a membership rule that on its face affronts much liberal sentiment was
allowed to stand as a concession to indigenous self-government, although it
is possible that the Court was aware that the membership rule had been
adopted in living memory with U.S. government encouragement and that
currents of reform were evident in the Pueblo. Justice White in dissent
implied that self-government was not the issue[78]
Where, as here, the group itself is very small, with members of the tribal
government and the tribal court well-acquainted with the specific situation
of each family, his reasoning suggests that the real justification for
federal court intervention was that the group was transgressing the
fundamental liberal principle that one must not be the judge in one’s own
cause. The conflicting opinions in this case highlight a clash between
modern liberal conceptions of the state, with a supposedly independent
judiciary constraining excesses and abuses of state power, and the realities
of government by some kinds of non-state groups, especially face-to-face
groups or those relying on non-judicial methods of social control.

A different balance was
struck by the High Court of Tanzania in Ephrahim v. Pastory and Kazilege[79]
In this case, Haya customary law allowed men to sell clan land outside the
clan without consent of the clan, but allowed women only the power of
usufruct, not alienation[80]
In other Tanzanian cases, state court judges had abstained from intervention,
stating that in the absence of statutory provisions, needed reforms in
customary law could come only by evolution of views within the particular
community. Mwalusanya, J., however, saw the judicial role as encompassing
renovation of customary law to accord with the prohibition of sex
discrimination in the Bill of Rights[81]
Accordingly, sale of land by a woman was allowed on the same terms as sale
by a man, which under Haya law meant that other clan members could redeem
the sale by payment of the purchase price to the outside purchaser within
six months[82]
The pluralist legal system of Tanzania, in which customary law of many
different communities regulates matters of property, inheritance, family,
and personal law within the framework of state law for a large proportion of
the population, differs materially from state legal systems in European
settler societies, in which accommodation of self-governance for numerically
small indigenous groups is understood as an anomalous departure from
universality. It is thus consistent for judges in local state courts to
favor intervention in Tanzania but argue for abstention from the affairs of
the Santa Clara Pueblo.

Comparing Ephrahim and
Santa Clara indicates that formulation of a non-contextual normative theory
governing the striking of such balances is a challenging and probably
hazardous undertaking if the theory is intended to be operational in
international law. A stimulating attempt is Will Kymlicka’s normative
distinction, intended to be operational, between external protection that
the state should help provide for minority groups to prevent domination by
the wider society or other social groups and internal restrictions that a
group imposes on the freedoms of its members, which, he argues, liberalism
does not permit[83]
Thus it is consistent with liberalism to provide special political
representation of minorities in legislative and recommendatory bodies,
self-government, and “polyethnic” rights such as support of minority
languages[84]
By contrast, the liberal state in which a minority group is located must
consider intervention to prevent persistent internal restrictions by the
minority group. For example, Kymlicka wants to prevent what he regards as
theocratical discrimination against Protestants in some Pueblo Indian
communities[85]
Non-consequentialist versions of liberalism focus on the violation of the
rights of individuals whose freedom is restricted[86],
without necessarily distinguishing different impacts of comparable
interventions arising from, for example, the different historical
experiences and current circumstances of the Bahaya in Tanzania and the
Santa Clara Pueblo. Extreme rights-orientation thus creates false
similitude. Kymlicka is careful to avoid this, but his account is not
explicitly contextual. He utilizes a preliminary distinction between
multinational and polyethnic polities that are almost determinative of
consequences but are much more clear-cut on paper than many polities are in
fact. He employs an inside/outside, internal/external dichotomy that is
confounded by practice and is curiously ahistorical. For the purposes of
internal restrictions, a minority group is evaluated as if it were a state
rather than a focal point of identity and power within a much larger polity,
a set of variegated, churning societies, and perhaps a complex of
transnational markets and connections[87]
Culture is treated as coextensive with the group, simply something a group
happens to have. Kymlicka also does not distinguish liberalism as an ideal
justificatory theory from the complex of justificatory theories actually
prevailing in different polities. The argument for upholding external
protections while considering intervention against a category of “internal
restrictions” is deceptively simple. It is stimulating as a parsimonious
normative theory in one group of liberal states, but operationalizing it in
these simple terms without close attention to history, context,
consequences, and prevailing background norms may have unappealing or
dangerous results.

Operationalizing such a
normative theory involves the questions of who judges, how they judge, and
what the various impacts of different rights-protecting institutions are[88]
Adjudicative approaches to minority questions have made appreciable
contributions but face inevitable limits, confronted even within the
relatively circumscribed scope of Article 27[89]
The case of Kitok v. Sweden before the Human Rights Committee typifies the
problems encountered by tribunals in using Article 27 as a means to redress
wrongs involving land and natural resources[90]
The diminution of areas available for reindeer pasturage due to encroachment
by other users, combined with rising living standards, was interpreted by
the Sami authorities, whose decisional competence was embodied in Swedish
state law, as necessitating the restriction of some aspiring reindeer
herders in order to maintain the viability of the reindeer-herding lifestyle[91]
The decision-making system on reindeer herding among members of the Sami
Village (Sameby) reportedly was weighted toward those who already had large
herds[92]
If it had been clear to the Committee on the complex facts that Ivan Kitok’s
formal exclusion from entitlement to herd reindeer was an arbitrary exercise
of local power, Article 27 might have provided a basis for intervention, the
infringing conduct of the Swedish state being its failure to intervene. In
so far as the Sameby policy depriving those who spent more than three years
away was a response to the crisis in the long-term viability of reindeer-herding
lifestyle and culture, however, the Swedish state was implicated much more
fundamentally in not securing sufficient land, pasturage, and support for
the Sami culture, yet the Committee became more hesitant to intervene. This
paradox structures the result in the case, a very uneasy compromise in which
no violation of the ICCPR is found because Kitok was in fact being permitted,
although not as of right, to herd reindeer, and nothing is said about the
systemic assimilationist effects of the diminishing resource base or other
aspects of historic Swedish state policy[93]

Many of the most
difficult systemic issues involving minorities are addressed more
effectively through negotiations and policy processes, especially in
deeply-divided societies. In highly-charged cases, international oversight
and conciliation may play important roles, as some of the work of the High
Commissioner for National Minorities of the Organization for Security and
Cooperation in Europe (OSCE) attests[94]
In cases involving indigenous peoples, international and national regimes of
minority rights may set useful minimum standards. Adjudicative or
quasi-adjudicative proceedings are significant in upholding fundamental
rights and in some cases may overcome a political impasse or provide impetus
to needed policy reforms.

Indigenous claims often
have much in common with minority claims. Before the surge of contemporary
legal activity concerning indigenous peoples, tribunals frequently conflated
the categories. Dealing with (and finding inadmissible) a Sami challenge to
a Norwegian government hydroelectric dam project flooding reindeer-herding
areas in 1983, for example, the legal basis on which the then European
Commission on Human Rights proceeded was simply that “a minority group is,
in principle, entitled to claim the right to respect for the particular life
style it may lead” as private life, family life, or home under Article 8 of
the European Convention[95]
That the distinction is not always applicable or easily drawn is attested by
the hesitation of the Supreme Court of Canada in the Quebec Secession
reference. It recognized that the protection of aboriginal and treaty rights
is “an important underlying constitutional value,” but skirted the issue of
whether these rights should be “looked at in their own right or as part of
the larger concern with minorities.”[96]

In practice, however,
tribunals facing indigenous issues increasingly have found themselves
identifying or constructing distinct analytical approaches that go beyond
standard minority provisions. This is especially prevalent where claims
arise from the distinct historical circumstances of indigenous groups, as
such claims are often sui generis in the national society. This applies, for
example, to the kinds of issues addressed in the Delgamuukw[97],
Mabo[98],
and New Zealand Maori Council cases[99]
Where claims are based on maintenance and development of a distinct culture,
religion, or language, there may be substantial analogy between indigenous
claims and claims of minority groups generally, and the legal techniques
used often will overlap. Very often the distinct indigenous element will be
integral to such claims as well. However, there is no universal bright line.
Where the substantive differences are contestable, distinctions between
indigenous claims and similar claims by other minorities may or may not be
legitimate, depending in part on compliance with fundamental human rights
standards and in part on the complex dynamics of different societies.

The dynamics are
well-illustrated by questions relating to reindeer herding and Sami identity
in Finland. Reindeer herding has a fundamental place in Sami culture, a
place recognized in Protocol 3 to the accession agreements governing the
entry of Sweden and Finland into the European Community[100]
This provides: The High Contracting Parties, recognizing the obligations and
commitments of Sweden and Finland with regard to the Sami people under
national and international law, noting, in particular, that Sweden and
Finland are committed to preserving and developing the means of livelihood,
language, culture and way of life of the Sami people, considering the
dependence of traditional Sami culture and livelihood on primary economic
activities, such as reindeer husbandry in the traditional areas of Sami
settlement, have agreed on the following provisions, Article 1
Notwithstanding the provisions of the EC Treaty, exclusive rights to
reindeer husbandry within traditional Sami areas may be granted to the Sami
people. Article 2 This Protocol may be extended to take account of any
further development of exclusive Sami rights linked to their traditional
means of livelihood . . . .”[101]

In Finland, however,
exclusive rights of this sort have not been accorded to the Sami. Reindeer
herding is practiced by assorted individuals, most of whom are Sami, some of
whom do not regard themselves as Sami, and some of whom claim to be Sami but
are not regarded as Sami by recognized Sami organizations. A single reindeer-herding
cooperative may include people in each category[102]
Many of the special government regulations relevant to reindeer herding are
applied not on the basis of ethnicity, but to geographic localities[103]
Difficult questions thus arise as to whether reindeer herding is an activity
in which preference and decisionmaking roles should be allocated on the
basis of being Sami, or a traditional reindeer herder, or a resident of the
relevant locality, or some combination of these. Some may argue, for example,
that everyone who participates in the traditional reindeer-herding culture
is a member of a minority whose rights to culture ought to be protected
under Article 27, whereas others have argued that the Sami are the relevant
minority, or that the operative category is membership in the Sami
indigenous people and participation in its community or political
organizations. As the indigenous (Sami) category becomes more significant in
public discourse in Finland, efforts have been made by “non-Sami” to broaden
the category of “Sami” to include them on grounds such as cultural affinity,
kinship connection, or fairness in representation. At one level, the debate
takes place in terms of legal categories and texts such as Article 27; at
another, it is a political struggle that is part of a continuous process of
construction and reconstruction of these categories and of the lines between
them. Any normatively appealing solution will not be simply categorical; it
must involve some balance of competing interests and rights. How the power
of decision is allocated is nevertheless of great importance. Typically,
this power, in practice, has rested preponderantly with state institutions,
but this simple allocation is increasingly contested by reference to a
competing conceptual structure, that of self-determination.

Negotiations on
international normative instruments relating to indigenous peoples
repeatedly have become ensnarled in the question of whether the
international law of self-determination applies to indigenous peoples. As in
other areas, political debate has revolved around the binary issue of the
complete applicability or inapplicability of an existing conceptual
structure. Representatives of indigenous peoples in international
negotiations have insisted, as a large group of them put it in a 1993
démarche to the U.N. Working Group on Indigenous Populations, that “the
right of self-determination is the heart and soul of the declaration. We
will not consent to any language which limits or curtails the right of
selfdetermination.”[104]
They proposed incorporation of a version of Article 1(1) of the 1966
Covenants in the U.N. Draft Declaration, modified to state expressly that
the right of self-determination belonged to indigenous peoples. The five
members of the Working Group adopted this proposal verbatim in Article 3 of
the Draft: “Indigenous peoples have the right of selfdetermination. By
virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development.” A number of states
met this with categorical opposition, asserting that these groups are not
peoples and have no international law right of self-determination. These
binary views are accompanied by deceptively simple appraisals of what is
involved. For many indigenous advocates, the core idea of self-determination
is self-evident and spelled out in the Draft; complaints about lack of
clarity are political diversions or academic excesses. For some state
governments, self-determination is a principle upholding independent states,
and any application of it to groups within states would undermine the state.

Self-determination has
long been a conceptual morass in international law, partly because its
application and meaning have not been formulated fully in agreed texts,
partly because it reinforces and conflicts with other important principles
and specific rules, and partly because the specific international law
practice of self-determination does not measure up very well to some of the
established textual formulations[105]
The standard international law of self-determination accords to the people
of certain territorially-defined units the right to determine the political
future of the territory. The categories of units to which this right applies
have not been delineated precisely[106]
but, in addition to states, at least five such categories are supported in
the practice of states and inter-state institutions:

(1)mandated
territories, trust territories, and territories treated as
non-self-governing under Chapter XI of the U.N. Charter;

(2)distinct
political-geographical entities subject to carence de souverainete´ (gross
failure of the duties of the state);

(3)other
territories in which the principle of self-determination is applied by the
parties;

(4)
highest-level constituent units of a federal state where that state has
dissolved; and

(5)formerly
independent entities reasserting their independence with at least the tacit
consent of the established state, where their incorporation into that state
was illegal or of dubious legality.

A somewhat distinct body
of practice confers upon such units, especially upon peoples of independent
states as represented by their governments, certain economic rights relating
especially to natural resources and certain protections in relation to title
to territory and the use of force[107]
While claims by indigenous peoples may in some cases fall within these
categories, for the most part their acceptance would involve some rethinking
of existing practice as represented in this summary. Elements of existing
interpretations of self-determination, together with increasingly coherent
bodies of emerging national and international practice and the growing
support among state governments for initiatives in relation to internal
self-determination generally and to indigenous peoples specifically, suggest
that the case of indigenous peoples may be one upon which innovative
normative formulations can be agreed. These almost certainly will not be
exhaustive of the issues, probably will not be highly precise, will not be
universally respected, and may be somewhat incoherent. At a minimum, they
must not be disastrously dangerous and, within the limits of existing
imprecision and incoherence, they should be consistent with existing
formulations relating to self-determination, human rights, and other
fundamental principles. If this is to happen, it is suggested that a
fundamental reorientation is called for that leaves aside the binary
conceptual debate and moves closer to emerging practice. This reorientation
involves shifting—not for the purpose of exhaustive statement, but merely
for the purpose of reaching agreement on partial formulations—from an
end-state approach to a relational approach to self-determination.

The legal instantiation
of self-determination upon which the claims of indigenous peoples have drawn
most in the formative period of the international indigenous movement is the
law established for decolonization of extra-European colonies of European
states[108]
and to a lesser extent the international law applied to special situations
such as minority rule under apartheid in South Africa[109]
The practice of decolonization did much to transform what had been in effect
a political principle of self-determination into a legal right, with
correlative duties for states exercising control over such units of self-determination
and more attenuated duties arising for other states as the erga omnes
character of the right came to be recognized[110]
Arguments for the extension of the decolonization justification of the right
of self-determination to indigenous peoples presuppose and recognize their
colonized status. These arguments appeal to the logic of decolonization and
urge that its unfinished business be addressed. Some of the early rhetoric
of the international indigenous peoples’ movement referred to the “Fourth
World” and sought support from newly decolonized states of the “Third
World.” This approach has been reinforced by appeal to the principle of
equality, which is associated explicitly with self-determination in the U.N.
Charter principle of “equal rights and self-determination of peoples.”[111]
If “all peoples” have the legal right to self-determination, it is argued
strongly that it is unjustifiable discrimination to treat indigenous peoples
differently from other “peoples.”[112]
This logic leads to the view that independence should be one of the options
for an indigenous people exercising self-determination, even if it is an
option rarely chosen in practice.

This argument from
decolonization has been reinforced by practice suggesting that
self-determination in the strong form as a right to establish a separate
state may be an extraordinary remedy in distinct territories suffering
massive human rights violations orchestrated by governing authorities based
elsewhere in the state; such an argument may explain acceptance of the
secession of Bangladesh from Pakistan. Internationally-backed autonomy
within the state may be an alternative remedy in such situations, much
discussed in the case of Kosovo. But the far-reaching argument that
self-determination in this strong form of statehood or almost complete
autonomy is essential as a general precondition for human rights does not
establish which groups or territories are the units of self-determination
for purposes of human rights enhancement, nor does it overcome legitimate
concerns about the threats to human rights and to human security posed by
repeated fragmentation and irredentism[113]
The remedial human rights justification for self-determination, while
persuasive in some cases, is most unlikely to become normal rather than
exceptional unless the sovereignty and legitimacy of states declines
precipitously[114]

The right to self-determination
in the context of European decolonization was conceived primarily as an
instrument for ending the colonial relationship by conferring freedom. The
future relations between colonizer and colonized were then to be determined
by free agreement; the right to selfdetermination was concerned with the
preconditions for such choice, not with the relationship itself. Many
problems were accentuated by the rapidity and artificiality of the
transformation of legal relations from colonial hierarchy to the supposed
equality and freedom of relations among sovereign states. Often the theory
of these legal relations was disconnected grossly from economic, political,
and social relations as they existed in practice. The duties of the colonial
state correlative to the right of the people of the colonized unit to self-determination
were mainly procedural, encompassing rather modest preparations of the
territory for possible independence, the negotiated establishment of an
environment and framework for a legitimate act of self-determination, the
proper conduct of a referendum, and the orderly transfer of power. The focus
was on realization of an end-state—usually independence, but occasionally
some other political arrangement. Most of the groups participating in the
international indigenous peoples’ movement, however, expect to continue in
an enduring relationship with the state(s) in which they presently live.
This is the expectation of leaders of the states involved. The claims of the
Cree in Quebec illustrate this dynamic. They have not sought independence
from Canada, concentrating instead on their evolving relations with the
federal and provincial governments, to which Canadian courts increasingly
have contributed[115]
If Quebec secedes based on its existing boundaries, thus changing the nature
of these relations, however, the Cree insist on exercising their right of
self-determination to determine their future, which might well involve their
continuing in Canada[116]
Thus the claim to self-determination in the sense of a choice among
internationally-sovereign entities is considered in practice by Cree leaders
as relational and remedial, triggered by outside action disrupting existing
relationships. In practice, assertion by the international indigenous
movement of a strong form of the right of “all peoples” to self-determination
may prove double-edged for the Cree in Quebec who oppose Quebec independence,
as such an argument is equally well-adapted to assertions of self-determination
in the name of some “people” defined by a separatist movement able to secure
a majority in Quebec.

The international
indigenous movement has been reluctant in international negotiations to move
away from the endstate model including possible independence in order to
maintain solidarity with groups unwilling to accept any relationship with an
existing state. A representative statement of such a position is that of
Mick Dodson, then a central figure in the Australian Aboriginal and Torres
Strait Islander Commission and Chair of the U.N. Voluntary Fund for
Indigenous Populations: “Finally, even where a state meets the obligations
required under the Declaration[117]
there will be some indigenous peoples whose right to self-determination will
never be satisfied until they have a free and independent state of their
own. And it would be a violation of those peoples’ right of
self-determination for anyone else to say that this is not an acceptable way
for them to exercise that right.”[118]
Similarly, a conference of “representatives of indigenous peoples of Asia”
at Baguio declared in 1999 that although autonomy and self-government may be
a way through which many indigenous peoples wish to exercise their right of
self-determination . . . these are not the only ways by which indigenous
peoples may exercise this right. . . . [T]hey have the right to establish
their own government and determine its relations to other political
communities[119]

While the international
indigenous movement may adhere to this theoretical position, it is not
viable as an express formulation for a U.N. Declaration on the Rights of
Indigenous Peoples to be adopted by states, nor does it embody the current
preoccupations of most internationally active indigenous peoples. By
contrast, a relational approach to self-determination captures many of the
aspirations embodied in the U.N. Draft Declaration produced by the U.N.
Working Group on Indigenous Populations (WGIP)[120]
Such an approach might be pursued in a U.N. declaration without foreclosing
remedial questions that may arise in extraordinary cases.

Self-determination is
about the relation between state and community. As an international program,
it has complex modern origins: in efforts by nationalists to establish
states for their nations, in efforts by state elites to establish a mass
sense of belonging to overcome the artificiality of the modern
rationalist-legal industrialized state, and in hybrid efforts to end foreign
domination and create state and nation all at once[121]
It can be state-threatening or state-reinforcing, liberating or chauvinist,
democratic or demagogic. In its legal operation since 1920, it generally has
buttressed the states system, even when potentially a threat, as with the
lift it provided to the minorities program in the 1920s and 1930s[122]
and its expression in the law of mandates, trusts, and decolonization. In
many states in which groups active in the international indigenous peoples’
movement live, maintenance of the state at present involves efforts by the
state to enhance its legitimacy, engagement with forms of community that run
deeper than rational-legal associations, and in some cases accommodation of
pluralism and multiple identities. There is thus, for the time being, a
convergence between indigenous peoples and state decisionmakers with
sufficient overlap to make conceivable the adoption of some set of
international principles, at least in the form of a U.N. declaration.
Reconstruction of the concept of self-determination is necessary in order to
take advantage of this convergence. The end-state, independence-oriented
focus, established during European decolonization and still relevant in some
situations, has diverted attention from the development of legal principles
concerning enduring relations between indigenous peoples and states[123]

The 1993 U.N. Draft
Declaration proposed by the WGIP incorporates numerous ideas relevant to
such reconstruction, but the only element explicitly connected with self-determination
is the strong preference for autonomy expressed in Article 31: Indigenous
peoples, as a specific form of exercising their right to self-determination,
have the right to autonomy or self-government in matters relating to their
internal and local affairs, including culture, religion, education,
information, media, health, housing, employment, social welfare, economic
activities, land and resources management, environment and entry by non-members,
as well as ways and means for financing these autonomous functions[124]
The meanings of “autonomy” and “self-government” are not specified further,
but the political connotation is one of freedom, subject to restrictions as
to matters not specifically included in the powers of the autonomous entity.
In practice, the most conspicuous exclusions from autonomy relate to foreign
affairs and military security, but Article 31 is more hesitant even than
this, not providing specifically for autonomy in matters such as policing,
taxation, or judicial proceedings. Article 31 does not connect autonomy
expressly with a land base, leaving open the possibility of autonomy that is
defined by personal affinity rather than territorial area. The kinds of
autonomy regimes which indigenous peoples operate or to which they aspire
vary enormously, influenced in part by geographical and demographic settings[125]
Almost all such regimes presuppose extensive relations between the
autonomous institutions and other government institutions of the state and
between indigenous people and other people within or outside the autonomous
area. Relations between autonomous entities (and their institutions) and the
state (and its institutions) require a complex governance framework, often
embodied in a formal agreement or in constitutional or legislative
provisions, which, although formally unilateral, over time may be understood
as requiring the consent of all affected groups before amendment[126]
Establishing the terms of such relationships and the legal elements
structuring the dynamics of their continued evolution has become a
specialized field of practice in crafting solutions in many strife-torn
polities. More systematic analysis of rapidly evolving autonomy arrangements
involving indigenous peoples and other groups may provide part of a
structure of norms to give substance to an emerging legal understanding of
autonomy[127]
It is clear, however, that in the overwhelming majority of cases autonomy is
not simply freedom, it is a relationship. Indeed, most of the aspirations of
most groups in the indigenous peoples’ movement involve definition of
relationships with states. The relational dimension of self-determination
embodies these aspirations. Giving meaning to this element of self-determination
thus requires that a central focus be on the terms and dynamics of these
relational aspects.

The U.N. Draft
Declaration identifies and includes provisions addressing many further
crucial issues in such relationships, but does not connect these expressly
to self-determination in the way advocated here. The dynamic of the U.N.
process has been rather the opposite, treating self-determination as an end-state
issue and separating the debate on self-determination from the structuring
of relationships. The Draft Declaration provides much of the material from
which the concept of self-determination may be reconstructed in relational
terms, but does not always develop the relational aspects sufficiently. The
Draft envisages that indigenous groups may determine their own memberships
and the structures of their own institutions[128]
meanwhile, indigenous individuals have rights to obtain citizenship of the
states in which they live[129]
Recourse for an individual aggrieved by a membership decision of the group
is not specified—decisions are required as to the enduring responsibilities
and powers of states of the sort invoked by Ms. Lovelace and Ms. Martinez.
Indigenous institutions and juridical practices may be maintained and
promoted, subject to internationally recognized human rights standards[130]
but the relation of these institutions and practices to state institutions,
particularly the judicial system, is not addressed explicitly. The Draft
would require states to include the rights recognized in the Declaration in
national legislation “in such a manner that indigenous peoples can avail
themselves of such rights in practice,”[131]
but the role of state institutions, especially courts and administrative
agencies, is not addressed systematically. The Draft alludes to the
capacities and powers of states throughout. States are required, for
instance, to “take effective measures to ensure that no storage or disposal
of hazardous materials shall take place in the lands and territories of
indigenous peoples,” a formulation that deliberately did not provide for
indigenous consent to receipt of such materials[132]
Indigenous peoples have the right to effective measures by states to prevent
any interference with, alienation of, or encroachment upon their rights to
“own, develop, control and use the lands and territories . . . which they
have traditionally owned or otherwise occupied or used.”[133]
This may entail some state responsibility to prevent alienation of land even
where an indigenous person wishes to sell, albeit perhaps only in
exceptional circumstances where the group’s own political and legal
structures are in disarray or where the conduct of the state (for example in
wrongly individualizing communal title) has precipitated the situation. Even
with qualifications, such state involvement raises complex problems, often
restricting the ability of indigenous groups to raise capital by mortgage or
to make their own development decisions. Further engagement between the
state and indigenous people is indicated in provisions that indigenous
peoples are entitled to benefit where they wish from state education[134]
and health care[135]
from the full rights accorded by international labor law and national labor
legislation[136]
and from financial and technical assistance[137]
and that they have the right to special measures to improve their economic
and social conditions[138]
and the right to reflection of indigenous cultural diversity in state-owned
media[139]
The broad philosophy of the Draft is that indigenous peoples have the right
to maintain and strengthen their distinct characteristics and legal systems
while retaining the right to participate fully in the life of the state[140]
The provisions concerning indigenous spiritual and material relationships to
and ownership, control, and restitution of land, territories, and waters,
together with provisions on environment, sustainable development, and
indigenous responsibilities to future generations, provide a foundation for
a land and territorial base within the state[141]
The Draft would constrain state military activities and development projects
in indigenous areas except with the consent of the people concerned[142]
Although specific formulations such as these will be debated, negotiation on
such issues is part of relational autonomy as already widely practiced. The
Draft is lacking in provisions on duties of indigenous peoples and in
provisions on reconciling the conflicting rights and interests of others,
including non-members and dissenting members; these and other relational
questions are of immense practical importance, but do not appear to be
excluded or prejudged by the Draft as written.

After long hesitation
about the application of the provisions on self-determination in Article 1
of the ICCPR[143]
to indigenous groups within independent states, the U.N. Human Rights
Committee has begun, in dialogues with states parties under the reporting
procedure, to express views under the self-determination rubric on the
substantive terms of relationships between states and indigenous peoples. It
has emphasized in particular the provisions of Article 1(2), which stipulate
that all peoples may dispose freely of their natural wealth and resources
and must not be deprived of their own means of subsistence[144]
It has criticized the Canadian government’s practice of insisting on the
inclusion in contemporary claims settlement agreements of a provision
extinguishing inherent aboriginal rights, confining aboriginal rights
instead to those specified in the agreement[145]
The Committee recommended that this practice “be abandoned as incompatible
with article 1 of the Covenant,”[146]
an important indication that the Committee believes the Article 1 provisions
on self-determination are applicable to indigenous peoples in Canada[147]
The Committee further recommended on the basis of Article 1 that the
Canadian government implement the Royal Commission report on the need for
greater allocation of land and resources to ensure institutions of
aboriginal self-government do not fail[148]
Earlier the Committee on Economic, Social and Cultural Rights had made
similar substantive recommendations to the government of Canada without
basing them explicitly on self-determination and the terms of Article 1 of
the International Covenant on Economic, Social and Cultural Rights[149]
As Article 1 is common to both Covenants, the logic of gradual convergence
in interpretation is compelling and is likely to prevail over differences in
institutional dynamics. The intervention of such bodies in the dynamics of
state-indigenous relations under Article 1 may be judged in relation to
Canada, where the government accepts the general principle of indigenous
self-determination and where the political and policy system already has
developed and calibrated possible initiatives. The international bodies,
which have scant ability to formulate such detailed policies themselves, are
able in such a case to boost one part of a national process. The challenge
for these bodies is whether to try to apply such interpretations of
selfdetermination for indigenous peoples to states where the government and
the political system are not prepared to accept any such notion or in
situations where there is no carefully crafted and politically legitimate
policy document upon which the international body may seize.

The number of state
governments accepting principles for relationships with indigenous peoples
that incorporate elements of self-determination gradually has increased.
Reasonably representative of current positions of Canada, New Zealand,
Denmark, and other governments is a 1995 statement by the then-Australian (Labour)
government, that self-determination is “an evolving right which includes
equal rights, the continuing right of peoples to decide how they should be
governed, the right of people as individuals to participate in the political
process (particularly by way of periodic free and fair elections) and the
right of distinct peoples within a state to make decisions on and administer
their own affairs.”[150]
The government of Guatemala, formally committed to implementing provisions
on land rights, local self-government, and national participation in the
1995 Mexico City Peace Agreement on Identity and Rights of Indigenous
Peoples[151]
has taken the position internationally that self-determination of indigenous
peoples is possible without threatening national unity[152]
A basis for comparable international positions is provided by the 1991
Colombian Constitution, which, in tandem with a series of Constitutional
Court decisions, envisages significant indigenous autonomy as well as rights
in relation to land, resources, consultation, representation, language, and
education[153]
and by the Philippines Indigenous Peoples Rights Act of 1997, which
expressly endorses indigenous self-governance and selfdetermination within
the state[154]
These legal policies often conflict with other government policies and may
fall far short in implementation and in their real effects, but their
normative stance has some genuine support and reflects a broader, if uneven,
trend. This trend may be necessary to the future success of the state[155]
as well as to the vitality of indigenous peoples.

A relational approach to
self-determination entails some crossing of the boundaries drawn in
political debate between the self-determination program and the human rights
program. This characteristic legal strategy has many adherents, and is
reinforced juridically by the inclusion of self-determination as the first
right in the 1966 Covenants (ICCPR and ICESCR)[156]
Thus, some justify self-determination on human rights grounds as a necessary
precondition and means to the realization of other human rights[157]
In this view, self-determination in finely nuanced forms is an embodiment of
the underlying objectives of human rights—general rights to political
participation, for example, or specific rights for the members of religious
and linguistic communities collectively to make decisions concerning
religious and language matters. This view, while plausible, is far removed
from the most common ways in which the idea of “self-determination”
presently is used in international practice, although the tide may be moving
in this direction. Others look behind the formal rules of self-determination
and human rights to find a justification that unites both programs, such as
the realization of freedom and equality through rights accorded to human
individuals or collectivities[158]
In this analysis, like the law of human rights, the law of self-determination
is the law of remedies for serious deficiencies of freedom and equality.
Comparable arguments also can be made for unifying these categories with
minority claims[159]

Internationalist writing
in western countries increasingly assumes conditions of unquestionable peace,
participation, and respect constructed through dialogue—what some have
described as the advent of the post-modern state[160]
In some such writing, the distinctions among the categories discussed here
virtually disappear, along with sovereignty. The right to self-determination,
human rights, minority rights, and indigenous rights all become one. This
view of the world, however, is dangerously optimistic as a basis for global
legal norms in-tended for serious application. It does not confront the hard
cases where the human rights, minority rights, and self-determination
programs lead in different directions. The logic of self-determination is
not simply the orderly negotiation of constitutional issues in a peaceful
and affluent society. To illustrate from extreme cases, it widely is thought
that the “free elections” held to vindicate post-communist democratic
selfdetermination in unified Yugoslavia in 1990 encouraged ethno-nationalist
campaigning and helped catalyze the ethnicization of politics that
precipitated war and fragmentation[161]
If these elections represented the self-determination program, they did not
represent the program of human rights. Conversely, U.N.-authorized
intervention in Somalia might be defended as protecting basic human rights,
but the insertion of external force into complex militarized local politics
is scarcely congruent with the standard discourse of self-determination.
Less extreme cases involving indigenous peoples arise often. One of the
unresolved dilemmas of basing indigenous claims on self-determination is
that in encouraging groups to mobilize as “nations,” some may take what
appears to outsiders (and to some insiders) as the path of nationalist
excess: oppressing dissenters, mistreating and even creating minorities in
order to create a clear majority and reinforce the dominant identity[162]
and confronting neighbors. Some persons who are indigenous but have multiple
connections may not wish to be forced to opt decisively into one group and
out of others; other persons who identify as indigenous, especially in urban
areas, may be living outside traditional communities and may be left with no
group to join. The self-determination program can have such costs. They can
be ameliorated, but not wished away; they must be evaluated in defining and
determining the limits of the self-determination program. On the other side
of such evaluation, as many members of indigenous groups point out, the
price of not having self-determination has been extremely high—state policy,
pursued with bureaucratic rationality but little accountability, often has
been very expensive for the state and dismal for indigenous people. The
logic of selfdetermination is that “the people” themselves, not state
governments, should make these evaluations; this is not the logic of the
human rights program.

As to the relationship
of self-determination to the minorities and indigenous peoples’ programs, it
already has been noted that the overlap between these latter categories is
considerable, and a relational approach is relevant to both. For example, in
advocating a view of self-determination as encompassing “the right of
distinct peoples within a state to make decisions on and administer their
own affairs,” the Australian government added that this is “relevant both to
indigenous peoples and to national minorities.”[163]
However, the terms of the relationships that evolve will often differ, for
reasons that are practical, normative, and, in some cases, strategic. In
some societies, indigenous claims to relational self-determination are
legitimate and actionable in a way that comparably extensive claims of
minorities might not be, whereas in other societies introducing such a
distinction between certain specified groups may be irrelevant or even
pernicious. The remarkable evolution of international norm-making to the
point where numerous state governments accept some concept of self-determination
as a principle broadly applicable to indigenous peoples has not been
paralleled even remotely in relation to minorities in general. For many
states this is because the category of “indigenous peoples” is close-ended,
politically accepted, and historically justified, whereas the category of
“minorities” is much wider and free-ranging. This body of practice is strong
evidence of the current political vitality of the distinction between these
two categories and suggests that the category of “indigenous peoples” is
operative and necessary to understanding the evolving law of self-determination.

Accounts and memories of
an earlier era of political independence are widespread among indigenous
peoples. In many cases, this independence initially was recognized by the
aspiring colonial power. Treaties between indigenous peoples and colonizing
or trading states made over several centuries commonly were premised on the
capacity of both parties to act. In some cases, this implied recognition of
the capacity of the leaders of the indigenous people to act directly in
international law. The Treaty of Waitangi, for instance, was one of many
such agreements included in standard nineteenth century European treaty
series[164]
The legal basis under which this independence was lost often was not
accepted by the indigenous group involved, and even under the legal
principles of contemporaneous international law espoused by the colonizers
it may have been tainted by illegality. The international law concerning
colonialism contained inconsistencies observed by many international lawyers
in the nineteenth century and earlier. It is not surprising that leaders of
some indigenous groups aspire to rectify wrongs by reviving their previous
independence.

Claims by the three
Baltic republics of the U.S.S.R. to revive their prior sovereignty received
some support during the rapid transition of these entities to independence
in 1991[165]

It is arguable that the
coercion involved in their incorporation into the Soviet Union was of
doubtful international legality in 1940-41, and that the incorporation was
void or voidable. If Lithuanian sovereignty was never extinguished lawfully
and could revive, why should not the same apply to Mohawk sovereignty as
some Mohawk have argued for centuries?[166]
The orthodox view has been that if any rule of international law existed
prohibiting and potentially negating the forcible incorporation perpetrated
by the Soviet Union, it was then very new, so that there are not necessarily
legal implications for groups forcibly incorporated into existing states in
earlier periods. Many states are aware of the vast implications of such
retrospective invalidation, and in the cases of the Baltic republics, states
sought to avoid establishing such a precedent by insisting that the
independent statehood of these entities should be recognized only once the
agreement of the authorities in Moscow had been obtained[167]
Because this program is not welldeveloped in practice, little attention has
been given to fundamental questions. More generally, whereas self-determination
is mainly a forward-looking program, the historic sovereignty program is
organized to be concerned with restoration of the status quo ante. This may
suggest legal responsibility for wrongful interference with sovereign rights,
a class of claim raised in exceptional legal proceedings such as those
brought by Nauru[168]
and by the U.N. Council for Namibia[169]
and in war reparations arrangements[170]
but otherwise generally sidestepped by former colonial powers and by other
military intervenors. Serious problems also may arise in relation to title
to territory—little analysis has been undertaken, for example, of the
relationship between historic sovereignty claims and the ordering principle
of uti possidetis juris. Internal administrative boundaries utilized by the
larger contemporary state may differ greatly from the boundaries ascribed to
the historic entity, yet such internal boundaries generally have governed in
the legal practice relating to decolonization and to disintegrating
federations. The traditional or ethnic group associated with the historic
entity now may be only a minority in the aspiring entity, a complexity
illustrated by the relationship between Yakut people and the self-proclaimed
Sakha Republic in Siberia.

A different kind of
concern is that the re-expression of indigenous aspirations in the language
of national and international legal structures can involve serious
distortion of intention. Haudenosaunee leader Oren Lyons, for example, has
pointed to the chimerical element of the modern quest for “sovereignty”
among Indian nations in the United States: [S]omebody else has it and tells
you you may have it, and so you try to find it; but every time you try to
find it it is not there. . . . [I]f something serves the purpose of the
state it is sovereign[;] . . . it serves the government’s purpose to
recognize Indian sovereignty, because it then does not have to abide by the
rules and regulations that govern nuclear wastes elsewhere in the United
States[171]

The recurrent
affirmations of Indian sovereignty in U.S. legal materials survive as a
mixture of general principle, article of faith, aspiration, morality play,
and illusion, so that there is a widespread interest in their maintenance,
but much resistance to their full vindication.

Reviving historic
sovereignty carries the hope of reversing the consequences of wrongs. In
focusing on past dispossession it incorporates a type of moral claim that
resonates with liberal principles. However, a general argument for
independence for indigenous groups based on historic sovereignty goes much
further than most groups wish. It takes little account of how things have
changed, and its radical implications provoke damaging resistance from
states. In practice, most indigenous peoples seeking to revive autonomous
power utilize more nuanced structures that incorporate some of the same
justifications: self-determination or the emerging conceptual structure of
indigenous peoples’ claims.

The construction and
affirmation of a distinct program of “rights of indigenous peoples,” going
beyond universal human rights and existing regimes of minority rights, has
been one of the objectives of the international indigenous peoples’
movement. It has received support from some states prepared to recognize the
validity of many claims made by indigenous peoples but anxious not simply to
endorse the extension of the existing self-determination and historic
sovereignty programs to indigenous peoples without modification. The Draft
Declaration on the Rights of Indigenous Peoples completed by the

U.N. Working Group on
Indigenous Populations in 1993 embodies such an approach[172]
While many of the provisions of this Draft apply or restate existing human
rights norms or other principles of international law to reflect particular
concerns and experiences of indigenous communities[173]
other provisions depart from this pattern to express specific aspirations
and self-understandings of indigenous groups, often couched as “rights.”[174]
This combination of components is characteristic of projects to constitute
“indigenous peoples” as a distinct legal category. It suggests, as has been
argued here, that many of the claims indigenous peoples make and much of the
law relevant to dealing with them do not depend on a group being an
“indigenous people.” It implies also that some elements of legal practice
buttress the strong arguments of the indigenous peoples’ movement, supported
by large numbers of states, for distinctive recognition.

Crafting substantive
legal rules on the basis of their applicability in cases involving a
distinct category of indigenous peoples can be a subtle and perilous task if
high priority is given to reconciling them with the four existing frameworks
already discussed. International Labour Organization (ILO) Conventions 107
(1957) and 169 (1989)[175]
are attempts to establish such a concept systematically, although with
virtually no involvement of indigenous peoples in the drafting process of
Convention 107 in the 1950s, and with appreciable but nonetheless limited
involvement in the process of Convention 169 in the 1980s. Although the
assimilationism of Convention ings on legal issues that are not reached
fully through adaptation of established categories and must be addressed
through a normative and institutional program based on “indigenous peoples”
as a legal category. Particular normative features include the legal regime
for restitution of traditional lands and territories; historically-grounded
and culturally-grounded entitlements and responsibilities with regard to
natural resources, religious sites, and spiritual or guardianship
relationships with particular land, water, mountains, etc.; entitlements and
responsibilities based on treaties or other agreements to which the
indigenous people is party; certain constitutional arrangements for
participation and political structures for membership and self-government;
duties in relation to ancestors and future generations; continuance of
certain kinds of economic practices; and perhaps entitlements and
responsibilities in relation to traditional knowledge.

After a long period of
relative neglect, the Inter-American Commission on Human Rights (IACHR) has
been galvanized by the impetus of the OAS Draft Declaration and increasing
involvement of legally-oriented indigenous peoples and interested NGOs and
has begun to take preliminary steps toward juridical operationalization of
an indigenous peoples’ program. It has begun referring some such cases to
the Inter-American Court of Human Rights[176]
and has taken an active role itself in brokering friendly settlements in
several cases, especially a 1998 settlement in which the government of
Paraguay agreed to purchase a substantial and quite precisely stipulated
land base for two Enxet communities, in effect conceding legal
responsibility to uphold indigenous rights to ancestral lands[177]
In a settlement involving atrocities in 1993 by Guatemalan self-defense
patrols against an indigenous community at Colotenango, it pushed
successfully for a settlement, which included not only compensation for
victims and their families, but also reparation for the community as a whole
in the form of schools and other development projects[178]
Such settlements often involve large, U.S.-based NGOs as well as pressure
from foreign governments and availability of financing by international
development institutions or aid agencies. Problems may arise as to how they
are carried out in practice and how far the local community (whose members
themselves have diverse interests and priorities) really is able to shape
the settlement and its implementation. The compatibility of such large,
structured settlements with human rights, the protection of minorities
within communities, self-determination, and historic sovereignty may involve
problems in particular cases that have not been explored fully yet[179]
The indigenous peoples’ program also has begun to animate IACHR dialogues
with states, although the IACHR’s approach continues to vary somewhat across
different country reports, reflecting some continued hesitancy in dealing
with governments of states that have long resisted intrusion in this area[180]

The views of the Human
Rights Committee in Hopu and Bessert v. France[181]
suggest, especially when read in conjunction with Ominayak[182]
and other cases[183]
that a majority of the Committee is willing to adopt very broad
interpretations of established rights in cases where some particular types
of groups are involved[184]
The claim brought by native Tahitians against a French government decision
to allow construction of a hotel complex in an area impinging on an ancient
Polynesian grave site was not considered under Article 27 because a majority
of the Committee had decided to treat France’s declaration on the non-applicability
of Article 27 as a comprehensive and effective reservation[185]
This removed the most obvious basis for the claim. But the Committee found
that the rights to family and to privacy of the Tahitian complainants were
violated, notwithstanding that the graves were reportedly of people who had
died several generations earlier and that no direct kinship relationship
between the complainants and the forebears in the grave site had been
established.190 The Committee decided that “family” must be interpreted by
reference to the social practices and cultural traditions of the particular
society and accepted the contention of the applicants that their
relationship to their ancestors was an essential element of their identities
and was significant in their family lives[186]
Specifically, the burial grounds “play an important role in the authors’
history, culture and life.”[187]
Like Lyng, this case was precipitated by lack of control by indigenous
peoples of land. Unlike the U.S. Supreme Court in Lyng[188]
however, the Human Rights Committee was prepared to read general human
rights provisions in a special way so as to accommodate the non-standard
situation of an indigenous group. The Committee’s broad interpretation would
have been strengthened by more systematic recourse to standard international
law methodology of treaty interpretation, particularly the means set forth
in Articles 31 and 32 of the Vienna Convention on the Law of Treaties[189]
In the absence of textual or drafting evidence, it certainly would have been
perverse to interpret “family” in Articles 17 and 23 as bounded by a single
social pattern all over the world. As a strong dissent pointed out, the
Committee’s views treated “family” as almost boundless and scarcely analyzed
the meaning and limits of the concept of “privacy” in applying it[190]
The Committee thus did not specify the analytical structure and limits of
the concepts on which it relies, so that these terms potentially could cover
an almost infinite variety of cases in many kinds of societies. It might be
inferred, however, that the Committee here was according special respect to
indigenous societies whose traditions, culture, lands, and beliefs had been
ignored and impaired by, in this case, a state established and still
dominated by colonizers. If this speculative explanation of the Committee’s
unarticulated premises is correct, the Committee was drawing sustenance from
the developing international commitment to rights of indigenous peoples.
Whether the Committee’s mandate under the Optional Protocol includes
carrying forward such an agenda outside Article 27, or even under Article
27, remains contentious within the Committee. One member has argued strongly
for interdependence among different provisions of the Covenant—so that even
a provision that is procedurally unavailable is relevant in interpreting a
procedurally available provision—and more generally for interdependence
between express ICCPR rights and other fundamental human rights including
rights pertaining particularly to indigenous peoples[191]
Strong forms of such a position clearly were rejected by the dissenters in
Hopu and Bessert[192]
and it is to be expected that some states will take similar views. This
debate is overlain by the wider problem for the Committee of whether to
enunciate only standards capable of global application or to try to nudge
some governments in a positive direction where the local political and legal
climate is receptive. The Committee pursued the latter strategy in this case
with some success, as France changed its legal practices applicable in this
and comparable situations to be consistent with its interpretation of the
Committee’s views[193]

The evidence is that a
category of claims made by indigenous peoples is emerging as a distinct
conceptual structure, although it certainly is not the case that every claim
by an indigenous group or person therefore falls into this category. Is such
a category justified, and how does it relate to the structures of other
established international law categories? For some, more than enough
justification lies in the existence and common experiences of the indigenous
peoples’ movement, for whom it is an essential form of self-expression,
mutual recognition, and leverage for legal and political change. Among the
ambient population and many persons who may count themselves as members of
indigenous groups, the most powerful argument for a distinctive legal
category based on special features of indigenous peoples is wrongful
deprivation, above all, of land, territory, self-government, means of
livelihood, language, and identity. The appeal is thus to history and
culture[194]
This justification works well in specific contexts where it is reasonably
clear in broad terms who is indigenous and who is not, what wrongs were done
in the past, and why it now seems morally obligatory to respond. Formulating
this justification as a rule for hard cases or as a global abstraction
capable of working across different types of societies with intricate
identity politics and rapid cultural and economic change, however, is
immensely difficult. Efforts to express culture and history as legal tests
have tended to produce feeble and ultimately unconvincing searches to find
or not find essentialized culture and searches to find or not find modern
majorities and minorities and peoples and owners as artifacts on the surface
of history. Other justifications appeal to special historic and cultural
relations with land, to enduring disadvantage, or to systematic
discrimination. These provide strong arguments, but are not exclusively
justifications for an indigenous peoples’ category.

The construction and
justification of a conceptual structure of indigenous peoples’ claims is
political as well as legal and threatens to exclude or make difficult other
political and legal projects. The indigenous peoples’ movement is part of a
wider identity politics that may clash with other politics, such as women’s
movements. As tribal identity becomes more important and a tribe seems more
beleaguered, women may feel forced to choose tribal identity and step back
from pan-tribal women’s movements that were more effective at reforming
unequal traditions[195]
Designation of some set of people as “indigenous” may be a simplistic social
construction that creates an antonymic identity of “non-indigenous,” setting
up a structure in which some are privileged and others disadvantaged for
unappealing reasons. The justification of history and culture may trigger a
search for authenticity that helps some who seem to meet, and, may in effect
set, such criteria, while taking from others who do not. Resources may go to
parts of groups able to maintain a strong political leadership appealing to
tribal tradition rather than to people whose grandparents or parents drifted
to urban areas. Resources may go to new kinds of elites who are able to
claim to represent regeneration and revitalization as opposed to more
traditional but less glamorous members of the same descent group. More
generally, the indigenous peoples’ program implies the insufficiency of
other programs for certain purposes, but its justifications also imply more
than simply supplementing the other programs in special cases. The
boundaries between this and other programs are highly permeable in law as in
present politics, but hard cases where the programs clash will continue to
arise, perhaps with increasing frequency.

If a distinct conceptual
structure of claims as “indigenous peoples” is emerging, how is “indigenous
peoples” defined? No general agreement has been reached in the United
Nations, although bodies such as the ILO and the World Bank have adopted
definitional criteria that function for specific purposes[196]
Because this program has a substantial practical existence, but does not
have consensus on a simple global justification, a constructivist approach
to the concept is urged. This has been developed and defended at length in a
separate paper, which concludes by proposing that a possible way forward for
the United Nations on the specific problem of definition might be to
establish a combined list of requirements and indicia[197]
In addition to the suggested requisites, some of the indicia ordinarily
would be expected but not required in special circumstances, while other
indicia would be simply relevant factors to be evaluated and weighed in
cases of doubt or disagreement. As suggested in that paper, the list might
be:

The increasingly rich
body of practice in the presentation and negotiation of claims raised by
indigenous peoples or members of such groups and the burgeoning
jurisprudence of some national and international courts and tribunals has
not established agreed-upon conceptual foundations for legal analysis and
political understanding of indigenous peoples’ issues. It has been argued
that at least five distinct conceptual structures operate. They make a
difference to legal outcomes. Ms. Martinez probably would have won had her
claim been treated as one of human rights, but lost because the U.S. Supreme
Court treated the issue in effect as one of the Santa Clara Pueblo’s self-determination
with regard to membership[198]
Ms. Lovelace’s claim succeeded as one for her rights as a member of a
minority, although not as a human rights challenge to sex discrimination,
and the Human Rights Committee was not willing to see the Lubicon Lake
Band’s resistance as a claim to self-determination, despite Article 1[199]
The Lubicon Lake Band attempted to raise its claim as one for self-determination,
but was rebuffed under the Optional Protocol and under Canadian law as it
then was, ending up with a minority rights holding by the Human Rights
Committee that was nevertheless buttressed by the Band’s position as an
indigenous people[200]
By contrast, the successful Indian claimants in Delgamuukw obtained a
Supreme Court of Canada ruling on property rights as indigenous peoples that
has implications for self-determination[201]
The Haudenosaunee in upstate New York might be able to employ a somewhat
comparable strategy, but based on past experience and observation of others,
they are very skeptical of such compromise solutions; many instead believe
that the only satisfactory solution is recognition of the continuation of
their historic sovereignty.

The absence of a single
unifying structure opens many strategic possibilities in the law of the
claims of indigenous peoples, but not just for indigenous peoples. Claimants
may choose structures based on the competence and likely receptivity of the
forum, looking in some cases for a structure that does not overreach, in
others for one that may open paths for future lines of argument in the same
or other fora. Respondents must decide whether to counter a claim within the
same structure of argument as it has been made, to recharacterize it, or to
raise a competing claim based on another conceptual structure. Bodies with
powers of recommendation or decision may calibrate their approaches in one
of several different systems of measure, jump between two or more structures
to avoid unpalatable implications, or integrate two or more conceptual
structures in seeking to craft far-sighted and workable approaches. Within
liberal societies, the multiplicity of concepts offers a way beyond the
limits that liberalism repeatedly confronts in coping with issues raised by
indigenous peoples[202].
Such multiplicity thus may be a basis of legitimacy.

Globally, the range of
concepts and the host of ways in which they can be connected and reconciled
render unconvincing any insistence on a single homogenizing structure that
is alien to the political discourse and social patterns in some societies,
or simply is unpopular with the regime. Even though in China the concept of
indigenous peoples is not accepted and human rights discourse has clear
limits, the concept of national minorities is well-established in the
constitutional structure and provides a structure for possible innovation
and reform. Even though in Finland official law and policy does not
recognize extensive Sami land rights, state land-use actions incompatible
with Sami culture may be controlled under the minority rights program. Even
though in the United States strong minority rights and multiculturalism are
viewed with suspicion, attenuated forms of historic sovereignty and
self-determination have legal endorsement and political legitimacy, albeit
fragile. Even though in New Zealand there is hesitation to move far toward
official multiculturalism, biculturalism has been established on the basis
of the indigenous peoples’ program and the Treaty of Waitangi. This
flexibility is far from the absolutism of rights and allows for evasion and
abuse. The risks of delegitimation of indigenous claims jurisprudence
through incoherence and polarization between political forces rallying
around competing and utterly unreconciled concepts are real. The global
system of international law, however, probably does not have the capacity to
resolve precisely by agreement difficult questions about the connections
among and limits of these conceptual structures.

Strengthened
international institutions, such as the Permanent Forum on Indigenous Issues
in the United Nations and the increasing role of the IACHR and ILO oversight
systems, can play an important role in monitoring and consciousness-raising.
Specialist bodies, such as the Conference of the Parties of the Biodiversity
Convention, can enunciate norms and action programs in difficult areas that
provide valuable guidance to states, indigenous peoples, and epistemic
communities of professionals. Functional international institutions, the
United Nations Development Programme for example, may be in awkward
positions in formulating clear justifications for policies on the issues of
indigenous peoples because of the lack of clarity among member states, as
well as limited familiarity and experience of staff[203]
The international indigenous peoples’ movement has played an important role
in many institutions in raising issues and formulating proposals and has
influenced texts ranging from Agenda 21 to the World Conservation Strategy.
The number of institutions involved, however, far exceeds the present
capacities of this movement, and each institution has its own dynamic and
its own pressures toward other priorities. This is especially evident in institutions associated with
international economic agreements, such as the WTO, NAFTA, and the proposed
Free Trade Agreement of the Americas, which have major impacts on indigenous
peoples but so far have been influenced very little by indigenous peoples’
organizations[204]General normative instruments such
as the U.N. and OAS Draft Declarations thus have played, and if momentum is
sustained may continue to play, a fundamental role in articulating norms and
justifications that pro-vide a shared reference and source of validation,
even while leaving unresolved the more recondite problems of concepts and
categories that have been the subject of this article.

NOTES:

§In memory of Andrew Gray
(1955-99), whose death in an airplane crash in Vanuatu robbed the
indigenous peoples’ movement of a selfless chronicler, indefatigable
activist, and great friend. The author thanks the many students with
whom ideas on this subject have been explored in courses at the New
York University School of Law, Harvard Law School, and the European
University Institute’s Academy of European Law in Fiesole, Italy. An
earlier version is included, as part of the Collected Courses of the
Academy, in Peoples’ Rights (Philip Alston, ed., Oxford University
Press 2001), and the present more extensively footnoted version
appears by permission. The support of the New York University School
of Law’s Filomen D’Agostino and Max E. Greenberg Research Fund, and
the comments of participants in a Seville University Conference and
a Boalt Hall Law School faculty workshop at Berkeley, are
acknowledged with gratitude

[1]Draft Declaration on the
Rights of Indigenous Peoples, as agreed upon by members of the
Working Group on Indigenous Populations at its eleventh session,
Commission on Human Rights, Sub-Commission on Prevention of
Discrimination and Protection of Minorities, 44th Sess., Agenda Item
14, at 50, Annex I, U.N. Doc. E/CN.4/Sub.2/1993/29 (1993)
[hereinafter U.N. Draft Declaration on the Rights of Indigenous
Peoples].

[4]See, e.g., Leslie A. Gerson,
Deputy Assistant Secretary of State, U.S. Department of State,
General Statement in the Commission on Human Rights Working Group on
the Draft Declaration on the Rights of Indigenous People, (Nov. 30,
1998), available at http://www.hookele.com/netwarriors/ us-opening.html
(“Since international law, with few exceptions, promotes and
protects the rights of individuals, as opposed to groups, it is
confusing to state that international law accords certain rights to
‘indigenous peoples’ as such.”)

[5]On this discourse, see, for
example, Antonio Cassese, Self-Determination Of Peoples: A Legal
Appraisal (1995); Karen Knop, Diversity And Self-Determination In
International Law (forthcoming 2002)

[23]See, e.g., Ian Brownlie,
The Rights of Peoples in Modern International Law, in THE RIGHTS OF
PEOPLES 1, 1, 9 (James Crawford ed., 1992)

[24]See Wygant v. Jackson Bd.
of Educ., 476 U.S. 267, 274 (1986) (articulating a two-pronged test
for racial classifications: (1) whether there was a compelling state
interest and (2) whether the means chosen to further that interest
were narrowly tailored)

[41]Native Title Amendment Act,
1998 (Austl.). For an overview of public law issues in Australian
courts, see Jennifer Clarke, “Indigenous” People and Constitutional
Law, in Peter Hanks & Deborah Cass, Australian Constitutional Law:
Materials And Commentary 50-112 (6th ed. 1999).

[49]Article 27 provides: “In
those States in which ethnic, religious or linguistic minorities
exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of their group, to enjoy
their own culture, to profess and practise their own religion, or to
use their own language.” International Covenant on Civil and
Political Rights, opened for signature Dec. 16, 1966, art. 27, G.A.
Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc.
A/6316 [hereinafter ICCPR].

[50]Such a distinction is
acknowledged partially in Article 30 of the Convention on the Rights
of the Child, which broadly tracks the language of Article 27, but
refers to minorities “or persons of indigenous origin.” See
Convention on the Rights of the Child, Nov. 20, 1989, art. 30, 28
I.L.M. 1448, 1468

[51]Article 27 also has been
invoked even where not directly applicable as a treaty text. It was
relied on, for example, by the Inter-American Commission on Human
Rights as powerful evidence of the existing state of international
law relevant to the interpretation of the less specific American
Declaration on the Rights and Duties of Man. See Case 7615,
Inter-Am. C.H.R. 24, OEA/Ser.L/V/11.66, doc. 10 rev. 1 (1985)

[64]Mary Ellen Turpel, The
Women of Many Nations in Canada, in Indigenous Women On The Move
93-103 (1990)

[65]The Committee’s approach
may be explained more austerely as being crafted to avoid problems
of the Covenant’s application ratione temporis: Sandra Lovelace had
married and lost her Indian status in 1970, but the Covenant entered
into force for Canada only in 1976. The Committee itself developed
its reasoning as an interpretation of the substantive provisions of
the ICCPR rather than as a construction of residually-available
provisions

[67]See Indian Act, R.S.C. ch.
32 (1st Supp.) (1985) (Can.). Long after this amendment made
excluded women and their children eligible for reinstatement, the
status of future generations remains unresolved

[70]See id. At the time,
children who could not claim membership of a recognized group were
in theory denied benefits, such as those accorded by the Indian
Health Service, although in practice such benefits increasingly have
been made available to people who are Indian even if for such
reasons not members of a federally-recognized tribe

[86]Cf. Brian Barry, Book
Review, 107 Ethics 153 (1996) (reviewing Will Kymlicka,
Multicultural Citizenship: A Liberal Theory Of Minority Rights
(1995)) (criticizing Kymlicka as being a romantic nationalist, too
well-disposed toward collectivities when there is a real tension
with the rights and moral value of individuals)

[87]See Thomas M. Franck, The
empowered self: law and society in the age of individualism 235-41
(1999)

[88]Some of these issues are
noted in Kymlicka, supra note 83, at 163-72. R

[94]See, e.g., Steven R.
Ratner, Does International Law Matter in Preventing Ethnic
Conflict?, 32 N.Y.U. J. INT’L L. & POL. 591, 617-47 (2000)
(discussing features of the work of the High Commissioner)

[105]For a survey of some of
these problems, see The Modern Law Of Self-Determination (Christian
Tomuschat ed., 1993)

[106]A number of such units are
discussed in Reference re Secession of Quebec [1998] 2 S.C.R. 217

[107]
See Ian Brownlie, Principles Of Public International Law 167, 599602
(5th ed. 1966)

[108]See generally Umozurike o.
Umozurike, Self-determination in International Law (1972)

[109]See John Dugard,
Recognition And The United Nations 98-108 (1987) (discussing
self-determination in the context of the establishment of
homeland-States in South Africa). See generally Michla Pomerance,
Self-Determination In Law And Practice: The New Doctrine In The
United Nations (1982)

[115]
See Grand Council Of The Crees, Sovereign Injustice: Forcible
Inclusion Of The James Bay Crees And Cree Territory Into A Sovereign
Quebec 56, 58, 61-67 (1995)

[116]See id. at 62-67. The
Supreme Court of Canada paid disconcertingly little specific
attention to issues raised by aboriginal peoples. See Reference re
Secession of Quebec [1998] 2 S.C.R. 217, 287-88. The Supreme Court
may well imply, but does not make absolutely explicit, that
aboriginal peoples should have a distinct place in negotiations were
Quebec to seek independence

[117]Declaration on Principles
of International Law Concerning Friendly Relations and Cooperation
Among States in Accordance with the Charter of the United Nations,
G.A. Res. 2625 (1970), U.N. GAOR, 25th Sess., Supp. No. 28, at 121,
U.N. Doc. A/8028 (1971)

[118]Mick Dodson, Towards the
Exercise of Indigenous Rights: Policy, Power and Self-Determination,
RACE & CLASS, Apr.-June 1994, at 74. Elsewhere, he notes that when
indigenous peoples started trying to persuade the WGIP to recognize
the right to self-determination, [t]he members of the Working Group
thought that we were crazy. The Chairperson made it clear that there
was no way that the Working Group could support recognition of such
a politically contentious right. An examination of the drafts from
one year to the next reveals that our perspectives were gradually
accepted. Mick Dodson, Comment, in Indigenous Peoples, The United
Nations And Human Rights, supra note 104, at 64. A significant group
of state govern-R ments have moved in the same direction over the
years, suggesting that unswerving adherence to the basic position
was initially a successful strategy for indigenous negotiators. On
the conduct of the negotiations in the first four annual sessions of
the Inter-Sessional Working Group of the Human Rights Commission,
see the thoughtful accounts by Andrew Gray in the IWGIA Yearbook
(The Indigenous World). Andrew Gray, Indigenous Peoples at the
United Nations: The Declaration Reaches the Commmission on Human
Rights, Indigenous World, 1995-96, at 247-68; Jens Dahl & Andrew
Gray, Indigenous Peoples Keep the U.N. Declaration Intact for a
Second Year, The Indigenous World, 1996-97, at 287-313; Jens Dahl &
Andrew Gray, U.N. Declaration Enters a Third Year at the U.N.
Commission on Human Rights, INDIGENOUS WORLD, 1997-98, at 347-63;
Andrew Gray, The U.N. Declaration on the Rights of Indigenous
Peoples is Still Intact, Indigenous World, 1998-99, at 355-72

[119]The Baguio Declaration,
Apr. 21, 1999, The Conference on Indigenous Peoples’
Self-determination and the Nation State in Asia, Baguio City,
Philippines, available at http://www.iwgia.org

[125]For one study of the
practicalities of self-determination, far from, although connected
with, the politics pursued in negotiations in Geneva, see Andrew
Gray, Indigenous Rights And Development: Self-Determination In An
Amazonian Community (1997)

[126]See Constitution Act, 1982,
§ 35.1, as set out in Canada Act, 1982, c.11, sched. B (U.K.). Even
provisions such as the allocation of power on Indian issues to the
federal government in section 91(24) of the British North America
Act of 1867 could not be amended easily without support from First
Nations in Canada. See British North America Act, 1867, 30 & 31
Vict., c.3 (U.K.)

[145]The Royal Commission on
Aboriginal Peoples criticized this policy in its final report. See 2
Royal Commission On Aboriginal Peoples, Final Report, ch. 2, § 3.8
(1996), available at http://www.indigenous.bc.ca/rcap.htm. The Royal
Commission earlier drew upon a study by Mary Ellen Turpel and Paul
Joffe. See Royal Commission on Aboriginal Peoples, Treaty Making in
the Spirit of Co-Existence: An Alternative to Extinguishment (1995),
available at http://www.ubcic.bc.ca/docs/Treaty_Making.doc

[147]For an argument that
harsher elements of the policy of extinguishment pursued by the
Australian government infringe international law, see Sarah
Pritchard, Native Title from the Perspective of International
Standards, 18 AUSTL. Y.B. INT’L L. 127, 167-69 (1997). The Native
Title Amendment Act also has been considered critically by the U.N.
Committee on the Elimination of Racial Discrimination. See Decision
2 (54) on Australia, Committee on the Elimination of Racial
Discrimination, 54th Sess., ¶ 21(2), U.N. Doc. A/54/18 (1999). The
New Zealand government’s policy of seeking to make contemporary
settlements of Maori claims “full and final” has been criticized by
Maori leaders and several scholars. See, e.g., Annie Mikaere,
Settlement of Treaty Claims: Full and Final, or Fatally Flawed?, 17
N.Z.U. L. REV. 425, 450-55 (1997)

[152]Report of the Working Group
on Indigenous Populations on Its Sixteenth Session, Commission on
Human Rights, Sub-Commission on Prevention of Discrimination and
Protection of Minorities, 50th Sess., Agenda Item 7, ¶ 30, U.N. Doc.
E/CN.4/Sub.2/1998/16 (1998

[157]See, e.g., The Right to
Self-Determination: Implementation of United Nations Resolutions,
Study Prepared by Hector Gros Espiell, Special Rapporteur of the
Sub-Commission on Prevention of Discrimination and Protection of
Minorities, ¶ 59, U.N. Doc. E/CN.4/Sub.2/405/Rev.1 (1980); Robert
McCorquodale, Self-Determination: A Human Rights Approach, 43 INT’L
& COMP. L.Q. 857 (1994)

[158]See, e.g., S. James Anaya,
Indigenous Peoples In International Law (1995); S. James Anaya,
Self-Determination as a Collective Right Under Contemporary
International Law, in Operationalizing The Right Of Indigenous
Peoples To Self-Determination, supra note 102, at 19. R

[159]Some such arguments are
evaluated and carefully sidestepped, in Athanasia
Spiliopoulou-A˚Kermark, Justifications Of Minority Protection In
International Law (International Studies in Human Rights, vol. 50,
1997)

[161]See Misha Glenny, The Fall
Of Yugoslavia: The Third Balkan War (3rd ed. 1996); see also Adam
Roberts, Communal Conflict as a Challenge to International
Organization: The Case of Former Yugoslavia, 21 REV. INT’L STUD.
389, 396 (1995) (discussing the ethnicization of politics)

[162]See, e.g., Making
Majorities: Constituting The Nation In Japan, Korea, China,
Malaysia, Fiji, Turkey And The United States (Dru C. Gladney ed.,
1998)

[164]Treaty of Cession, Feb.
5-6, 1840, Gr. Brit.-N.Z., 89 Consol. T.S. 473; VI A Complete
Collection Of The Treaties And Conventions, And Reciprocal
Regulations, At Present Subsisting Between Great Britain And Foreign
Powers, And Of The Laws, Decrees, And Orders In Council, Concerning
The Same; So Far As They Relate To Commerce And Navigation, To The
Repression And Abolition Of The Slave Trade; And To The Privileges
And Interests Of The Subjects Of The High Contracting Parties 579
(Lewis Hertslet ed., 1845). Many such treaties are collected and
printed in a separate section in Clive Parry’s Consolidated Treaty
Series (published in the latter part of the twentieth century), but
often the original sources intimated no qualitative distinction of
this sort. See Michael A. Meyer, Indexguide: Special Chronological
List 1648-1920 (1984) (indexing treaties as found in the
Consolidated Treaty Series)

[165]For discussion, see Roland
Rich, Recognition of States: The Collapse of Yugoslavia and the
Soviet Union, 4 EUR. J. INT’L L. 36 (1993); Colin Warbrick,
Recognition of States, 41 INT’L & COMP. L.Q. 473 (1992). Some
advocates of Eritrean independence espoused a variant of this
argument, although the legal situation was different, not least
because of U.N. General Assembly endorsement of the 1952 inclusion
of Eritrea as a component part of the Ethiopian Federation. Cf.
Eyassu Gayim, The Eritrean Question: The Conflict Between The Right
Of Self-Determination And The Interests Of States(1993)

[169]On the litigation brought
by the United Nations Council for Namibia against Urenco, see Nico
Schrijver, The UN Council for Namibia vs. Urenco, UCN and the State
of the Netherlands, 1 LEIDEN J. INT’L L. 25 (1988). See generally
Nico Schrijver, Sovereignty Over Natural Resources: Balancing Rights
And Duties, ch. 5 (1997)

[170]See Cesare P.R. Romano, Woe
to the Vanquished? A Comparative Analysis of the Reparations Process
after World War I (1914-1918) and the Gulf War (19901991), 2 AUS.
REV. INT’L & EUR. L. 361 (1998). For a somewhat different view of
the U.N. Compensation Commission, see The United Nations
Compensation Commission: Thirteenth Sokol Colloquium (Richard B.
Lillich, ed., 1995)

[173]See, e.g. id. art. 2
(declaring “the right to be free from any kind of averse
discrimination”), art. 3 (“Indigenous peoples have the right of
selfdetermination.”), art. 5 (“Every indigenous individual has the
right to a nationality.”), art. 6 (declaring “the individual rights
to life, physical and mental integrity, liberty and security of
person”), art. 18 (“Indigenous peoples have the right to enjoy fully
all rights established under international labour law and national
labour legislation.”), art. 43 (“All the rights and freedoms
recognized herein are equally guaranteed to male and female
indigenous individuals.”). Article 1 also provides: “Indigenous
peoples have the right to full and effective enjoyment of all human
rights and fundamental freedoms recognized in the Charter of the
United Nations, the Universal Declaration of Human Rights and
international human rights law.” Id., art. 1

[174]See, e.g., id. art. 7
(“Indigenous peoples have the collective and individual right not to
be subjected to ethnocide and cultural genocide . . . .”), art. 25
(“Indigenous peoples have the right to maintain and strengthen their
distinctive spiritual and material relationship with the lands,
territories, waters, and coastal seas and other resources which they
have traditionally owned or otherwise occupied or used, and to
uphold their responsibilities to future generations in this
regard.”), art. 31 (declaring that “[i]ndigenous peoples, as a
specific form of exercising their right to self-determination, have
the right to autonomy or self-government” in certain matters)

[176]Mayagna Indian Cmty. of
Awas Tingni v. Nicaragua, a case against government-approved logging
operations that resulted in an important decision by the Court on
indigenous peoples’ land rights and the right to a remedy in
national law, exemplifies the Commission’s more active approach. See
Case 79, La Communidad Mayagna (Sumo) Awas Tingni v. Nicaragua,
Inter-Am. Ct. H.R. (Aug. 31, 2001), available at
http://www.corteidh.or.cr/serie_c/ Sentencia.html

[185]See id. at 81. Whether this
decision is consistent with the Committee’s General Comment 24 on
Reservations was not discussed. A strong dissenting opinion on the
French declaration, however, suggests that the declaration in its
own terms does not apply to the French overseas possessions

[194]See, e.g., Lawrence Rosen,
The Right to Be Different: Indigenous Peoples and the Quest for a
Unified Theory, 107 YALE L. J. 227 (1997)

[195]Sunila Abeysekera has made
this point in relation to the North-East Network of North-East
Women, an inter-tribal women’s network in northeast India. See
Sunila Abeysekera, Women and Peace in Sri Lanka: Some Observations,
WOMEN IN ACTION, 3:1999, http://www.isiswomen.org/wia/wia399/
pea00002.html; Sunila Abeysekera, Are You Proud of Being You?: A
Discussion on Racism, Prejudice, Discrimination and Women, Women in
Action, 1-2:2000, http://www.isiswomen.org/wia/wia100/hum00012.html

[202]Cf. James Tully, Strange
Multiplicity: Constitutionalism In An Age Of Diversity (1995)

[203]A long process of United
Nations Development Programme (UNDP) consideration resulted in a
complex Policy Note adopted in October 2001. See UNDP, Policy Note:
UNDP and Indigenous Peoples: A Policy of Engagement, at http://www.undp.org/policy/docs/FINAL_IP_POLICY_Oct_11.doc
(last visited Mar. 7, 2002

[204]
Materials from a conference on Indigenous Peoples and International
Trade Agreements, to be held at New York University School of Law in
May 2002, are forthcoming at www.law.nyu.edu